Sunday, July 6, 2014

Why Hobby Lobby is bad for religious freedom

Last week's Hobby Lobby decision at the Supreme Court has been widely promoted both by its supporters on the right and its detractors on the left as a victory for religious freedom ([1]; [2]). It is nothing of the sort – it is a victory for employer freedom.

Many people, including many Americans, don't realise that constitutional rights only apply to interactions with the government. As workers, the only rights Americans have vis-a-vis their employers are those granted by ordinary law, not by the constitution, and are thus secondary to any rights the employer has under the constitution. For religious freedom, as with many other freedoms, these rights are granted by the Civil Rights Act of 1964.

But there are exceptions to the rights granted by the Civil Rights Act. In order not to trample on employers' First Amendment rights Title VII, which deals with religious freedom, has a specific exemption for 'religious corporations' ([3]).

The Supreme Court has now ruled that Hobby Lobby and other similar companies are, in plain English, religious corporations. They have First Amendment rights, and would therefore appear to be exempt from the religious discrimination clauses of the Civil Rights Act.

How bad could this be? For minority beliefs, the answer is 'very'. A recent study by researchers at the University of Connecticut showed significant discrimination in hiring in the southern states of the US against Muslims, atheists, pagans and Catholics, even though this is illegal ([4]). The indications from politics are also not encouraging, with corporations ordering their workers to attend political rallies without pay as a condition of employment ([5]; [6]).

The argument is sometimes made, particularly by those on the right who wish to avoid legislation, that corporations who mistreat their workers will be shunned by the market. This has not been shown to be particularly effective outside of a few fairly narrow sectors: Hobby Lobby don't appear to be suffering, nor do the mining companies who forced their workers to campaign for Romney, while the well-documented abuses of Walmart and Amazon go similarly unpunished.

Using the model of what has been allowed on the political sphere, this exemption from Title VII would mean employers such as Hobby Lobby could enforce membership of a particular 'corporate church' religion (presumably including tithing their salary if the corporate church so demands) and – without pay – attendance at corporate church events.

For-profit employers also gain the right to punish workers for failing to live their corporate religious values – which, as the Court only requires that they be sincerely held, could be virtually anything. Given the number of Catholic colleges opposing their workers' right to unionise, it also doesn't appear to matter if the claimed exemption is diametrically opposed to the teaching of the church they are affiliated to ([7])! From allowing religious discrimination it's also not a great stretch to covert racial discrimination – 'No Catholics', for instance, could easily be code for 'No Hispanics' in Arizona.

In short, the ruling that companies can have religious characters and rights is a victory for corporate might – and a disaster for religious freedom.